use, which is beneficial to the bailee only, nor is he responsible for the smallest neglect. He is responsible for light, but not the lightest neglect, de levi culpa, and not de levissima culpa.a

The rule would appear to be, that the pawnee was neither absolutely liable, nor absolutely excusable, if the pledge be stolen. It would depend upon circumstances,

whether he was or was not liable. A theft may *581 happen without even *a slight neglect on the part of the possessor of the chattel; and I think it would be going quite far enough, to hold that such a loss is prima facie evidence of neglect, and that it lays with the pawnee to destroy the presumption. It is not suffi cient, says Pothier, that the pawnee allege that the pledge is lost. He must show how it was lost, and that it was not in his power to prevent it. This was also the decision of the civil law.b

In the case of Cortelyou v. Lansing, it was shown, by a careful examination of the old authorities, to have been the ancient and settled English law, that delivery was essential to a pledge, and that the general property did not pass, as in the case of a mortgage, but remained with the pawnor. The pledge of moveables without delivery is void, as against creditors. The Roman law allowed the creditor, after delivery of the pledge, to return it to the debtor on the footing of location: but Voet and Bell very properly condemn the Roman rule, as leading to fraud and the insecurity of property.e

At

Ibid. No. 32. 36.

Pothier, Traite du Contrat de Nantissement, No. 31. Mr. Justice Story (Com. 224-229,) has very fully and ably vindicated the doctrine of Lord Coke against that of Sir William Jones; and he has satisfactorily proved, that theft per se establishes neither responsibility nor irresponsibility in the bailee.

• 2 Caines' Cases in Error, 200.

a 2 Bell's Com. 25, 5th edit. Story's Com. 201, 202, 2d edit.

Dig. 20. 1. 37. Voet, Com. ad Pand. 20. 1. 12. 2 Bell's Com. 22. The pledge may, however, as it would seem, be delivered back to the owner in a new character, as a special bailee or agent, and the pledgee

common law, if the pledge was not redeemed by the stipulated time, it did not then become the absolute property of the pawnee, but he was obliged to have recourse to process of law to sell the pledge; and until that was done, the pawnor was entitled to redeem. If the pledge was for an indefinite time, the creditor might, at any time, call upon the debtor to redeem by the same process of demand. Where no time was limited for the *redemption, the pawnor had his own lifetime to *582 redeem, unless the creditor, in the mean time, call

с

ed upon him to redeem; and if he died without such call, the right to redeem descended to his personal representatives. The law now is, that after the debt is due, the pawnee may not only proceed personally against the pawnor for his debt without selling his pawn, for it is only a collateral security, but he has the election of two remedies upon the pledge itself. He may file a bill in chancery, and have a judicial sale under a regular decree of foreclosure; and this has frequently been done in the case of stock, bonds, plate and other chattels, pledged for the payment of the debt. But the pawnee is not bound

will still be entitled to the pledge, even as against third persons. Macomber v. Parker, 14 Pick. Rep. 497. Story on Bailment, 203, 2d edit. If a thing be not in existence there cannot be a technical pledge, but there may be a hypothetical contract, which will attach as a lien or pledge to them as soon as they come into existence. Macomber v. Parker, 13 Pick. 175. Calkins v. Lockwood, 16 Conn. Rep. 276. Story on Bailment, 290. Vide supra, p. 517. 578.

▲ Glanville, lib. 10. ch. 6. Cortelyou v. Lansing, 2 Caines' Cases in Error, 204, 205.

b Cortelyou v. Lansing, ub. sup. Ratcliffe v. Davis, 1 Bulst. Rep. 29. Yelv. Rep. 178. Cro. J., 244, S. C. Demandray v. Metcalf, Prec. in Ch. 420. Vanderzee v. Willis, 3 Bro. 21. The pledge by the Roman law, might also insist upon a compulsory sale by the creditor. Pothier, Pand. 20. 5. 16. This is also the law in Louisiana, Williams v. Schooner St. Stephens, 14 Martin's Rep. 24.

• South Sea Company v. Duncomb, Str. 919. Elder v. Rouse, 15 Wend. 218. Story on Bailment, p. 211, 2d edit.

1 Demandray v. Metcalf, Prec. in Ch. 419. Gilbert's Eq. Rep. 104. Kemp v. Westbrook, 1 Ves. 278. Vanderzee v. Wills, 3 Bro. 21.

to wait for a sale under a decree of foreclosure, as he is in the case of a mortgage of land; (though Lord Chancellor Harcourt once held otherwise ;) and he may sell without judicial process, upon giving reasonable notice to the debtor to redeem. This was so settled in the cases of Tucker v. Wilsona and of Lockwood v. Ewer. The notice to the party in such cases is, however, indispensable. This was conceded in Tucker v. Wilson, and it has been since so ruled in this country. The old rule existing in the time of Glanville, and which is now the rule on the continent of Europe and in Scotland, required a judicial sentence to warrant the sale.d The Code Napoleone has retained the same check, and requires a ju

dicial order for the sale; and the Code of Louisi*583 anaf has *followed the same regulation. The

civil law allowed the pawnee to sell, in case of default of payment, and after due notice on his own authority; but if there was no special agreement, it required a two years notice to the debtor, by an order of Justinian.g The English and American law, with the exception of Louisiana, agree in the prompt and easy remedy which they place in the hands of the creditor, when the pawn is not under the control of a special agreement; and there is not any distinction as to the right to sell between the case of a pledge, and of a mortgage of chattels. But

De Lisle v. Priestman, 1 Brown's Penn. Rep. 176. Covell v. Gerts, Law Reporter for July, 1846.

Glanville, lib. 10. ch. 6. 8. Huber's Prælec. tom. iii. 1072, sec. 6. Perezius in Cod., tom. ii. p. 63. sec. 8. Domat, vol. ii. p. 362. sec. 9, 10. Ersk. Inst. vol. ii. p. 455. Pothier, Traité du Contrat de Nantissement, No. 24. 2 Bell's Com. 22, 5th edit.

• Art. 2078.

f Art. 3132.

Code, 8. 34. 3. 1. See, also, Dig. 13. 7. 4.

18, 19.

Pothier, Pand. 20. 4. n.

h Hart v. Ten Eyck, 2 Johns. Ch. Rep. 62. 100. Patchin v. Pierce, 12 Wendell, 61.

583 the creditor will be held at his peril to deal fairly and justly with the pledge, both as to the time of the notice, and the manner of the sale. The law, especially in the equity courts is vigilant and zealous in its circumspection of the conduct of trustees, a

But the lex commissoria at Rome, the debtor and creditor might agree, that if the debtor did not pay at the day, the pledge should become the absolute property of the creditor. But a law of Constantine abolished this power, as unjust and oppressive, and having a growing asperity in practice. Every agreement preventing the right of redemption, in mortgages of chattels, as of lands, would, no doubt, be equally condemned in the English law.c

The pledge covers not only the debt, but the interest upon it, and all necessary expenses that may have attended the possession of the pledge; and the lien may by agreement, be created to extend to cover subsequent advances. This has been considered to be the law in respect to mortgages and judgments; but the power is subject to some qualification, as respects the rights of third persons. Lord Chancellor Cowper gave validity and operation to such a *mortgage, as *584 against a subsequent mortgagee, who had notice of the agreement appearing on the face of the first mort

Hart v. Ten

Cortelyou v. Lansing, 2 Caines' Cases in Error, 200. Eyck, 2 Johns. Ch. Rep. 62. See, also, infra, vol. iv. p. 139, S. P. The holder of hypothecated stock cannot, on defence, without an express stipulation, have it sold at the board of brokers. It must be sold at public auction on responsible notice. By A. V. Ch. in Castello v. City Bank of A., 1 N. Y. Legal Observer, 25.

Code, 8. 35. 9. Hub. tom. iii. 1038, sec. 16. 1 Domat, 362, sec. 11. Pothier, de Nantissement, n. 18.

• Cortelyou v. Lansing, 2 Caines' Cases in Error, 200. Garlick v. James, 12 Johnson's Rep. 140.

Shirras v. Craig & Mit

a United States v. Hooe, 3 Cranch's Rep. 73. chell, 7 Ibid. 34. Hendricks v. Robinson, 2 Johns. Ch. Rep. 309. Livingston v. M'Inlay, 16 Johns. Rep. 165. Lyle v. Ducomb, 5 Binney's Rep. 585. See infra, vol. iv. p. 175.

gage; and in Connecticut it has been justly held, that the mortgage must contain within itself reasonable notice of the incumbrances, by stating the nature of those thereafter to arise, and the manner in which they were to be created; so that collusion and fraud may be avoided, and the extent of the incumbrances ascertained, by the exercise of ordinary discretion and diligence. Though

there be no express agreement that a pledge for a debt shall be held as security for future loans, yet if circumstances warrant the presumption that a further loan was made upon the credit of the pledge, a court of equity will not suffer the debtor to redeem the pledge without payment of the further loan. If however, there be no reasonable ground for such a presumption, the better opinion is, that the pawnee will not be allowed to retain the pledge for any other debt than that for which it was. made.d

In Jarvis v. Rogers, this question was extensively discussed, and the weight of opinion would seem to have been, that the pawnee could not retain the pledge, independent of a special agreement, for any other debt than that for which the chattel was specifically given; and that good faith would require the restoration of it without deduction on account of any cross demand. This I think to be the better opinion. It was, however, stated, in that case, that by the civil law the pawnee might retain the pledge, not only for the sum for which the pledge

■ Gordon v. Graham, 7 Viner's Rep. 52, E. pl. 3.

b Pettibone v. Griswold, 4 Conn. Rep. 158. Stoughton v. Pasco, 5 Ibid. 442. Crane v. Deming, 7 Ibid. 387.

c Demandary v. Metcalf, Prec. in Ch. 419. 2 Vern. Rep. 691. Gilliat v. Lynch, 2 Leigh's Rep. 493.

a Ex parte Ockendeen, 1 Atk. Rep. 236.

Jones v. Smith, 2 Vesey, jr.

see Adams v. Claxton, 6 Ve

sey, 226, where the authority of the two last cases is somewhat disturbed. Jarvis v. Rogers, 15 Mass. Rep. 389. 397. 414. Story on Bailments, 205, 2d edit.

15 Mass. Rep. 389.